Friday, October 30, 2015
A proposal to ban shipment of lithium-ion batteries on passenger flights was brought before the ICAO dangerous goods panel earlier this week, but the panel reportedly voted against making a recommendation to ICAO's Air Navigation Bureau that the ban be adopted. Shipment of lithium-ion batteries have become an increasingly contentious issue in recent years as they have been found to present a fire risk if improperly stored, while demand has exploded as a result of their use in consumer electronic devices. The panel did recommend certain procedural safeguards be implemented with regard to battery shipment. The Bureau is expected to follow the panel's recommendation.
Wednesday, October 28, 2015
A Sixth Circuit opinion handed down Monday should provide more options to persons seeking to challenge their placement on the No Fly List. Currently, the Department of Homeland Security provides an administrative process through which redress can be sought. Appeals of these DHS decisions are statutorily confined to U.S. appellate courts. According to the Sixth Circuit's ruling in Mokdad v. Lynch, challenges of a citizen's placement on the No Fly List by the Terrorist Screening Center, as opposed to appeals of the results of the administrative application for redress, are not covered by the aforementioned statutory restrictions and can therefore by heard by U.S. district courts, opening up a new venue for challenges. A more complete explanation of the legal issues involved can be found here.
Monday, October 26, 2015
The German transport ministry relented late last week on its refusal to approve codesharing between Air Berlin and Etihad on a number of flights, but only on a temporary basis. The ministry warned that it did not intend to approve operation of the codeshares beyond January 15. Etihad and Air Berlin had previously operated the codeshares in question, but the transport ministry announced last year that it had determined the codeshares were not authorized by the Air Services Agreement between Germany and the United Arab Emirates. Under the ASA, neither Etihad nor Emirates have the rights to serve Berlin, so Etihad has instead been sharing its code on Air Berlin flights between Berlin and Abu Dhabi. The transport ministry's recent decision appears to have been prompted by an injunction handed down by a German administrative court, presumably on the basis that Air Berlin would have been materially harmed if the codeshare question had gone unresolved beyond the October 25 deadline for approval of the winter flight schedule, and that Etihad's investment in a 29.2% stake in Air Berlin was predicated on the assumption that the codeshares would be permitted to continue. The dispute over codeshares is undoubtedly being influenced by the increasing tension between European carriers and the Gulf Carriers over issues of fair competition and Gulf carrier expansion into the EU market.
Wednesday, October 21, 2015
The FAA announced last week that, for the first time since the creation of the International Aviation Safety Assessment program, Nicaragua has qualified for Category 1 status. The upgrade doesn't portend any immediate commercial ramifications as Nicaragua lacks an international carrier that could take advantage of the expanded operating privileges to the United States market that accompany a Category 1 rating, but it is nonetheless a welcome recognition for the country's aviation sector.
Friday, October 16, 2015
The Volume 15, Autumn 2014 issue of the International Aviation Law Institute's journal, Issues in Aviation Law and Policy (IALP), will be available in November. The following papers will appear in the upcoming edition:
- Brian F. Havel & John Q. Mulligan, International Aviation’s Living Constitution: A Commentary on the Chicago Convention’s Past, Present, and Future (Commentary)
- Federico Bergamasco, State Subsidies and Fair Competition in International Air Services: The European Perspective
- René David-Cooper, Implementing Safety Management Systems (SMS) in Canada: Is Flight Safety on a Collision Course with the Forced Disclosure of SMS Data?
- Ariel Martín Oliveto, FAA vs. EASA: A Comparative Analysis of the Disciplinary Systems Applied in Aviation Law
- Taylor Strosnider, The Discount List: Achieving Cape Town Convention Implementation and Its Future
- “Conversations with Aviation Leaders” Oral History Program: A Conversation with Frederick W. Smith (Transcript of Oral History Program Episode)
Wednesday, October 14, 2015
According to news reports today, Russia hopes to prevent yesterday's report from the Dutch Safety Board from becoming the final word on the downing of Malaysia Airlines Flight MH17 and is asking ICAO for help. It isn't quite clear what Russia is hoping ICAO will do. Annex 13 to the Chicago Convention, which covers Aircraft Accident and Incident Investigations, contains no provisions under which ICAO would commission a second, separate investigation upon conclusion of the official investigation and issuance of the final report. Investigations can be reopened if new evidence is discovered, but Russia has not indicated what new evidence it has in its possession, and the decision to reopen would be made by the Netherlands as the State that conducted the investigation. There appears little reason to believe the matter will be reopened, and it is likely that today's reports were primarily intended as a way for Russia to reiterate its opposition to the Dutch report.
Russia had limited participation in the investigation because it was not the State of Registry, the State of Manufacture, the State of the Operator, and there were not Russian nationals aboard the flight. This may seem unfair to Russia, as it essentially stands accused, but the investigative report is not intended to assign blame or liability. Should a criminal tribunal be established outside of ICAO or the UN, Russia would presumably have an opportunity to defend itself then.
Tuesday, October 13, 2015
The Dutch Safety Board has released its final report into the downing of Malaysia Airlines Flight MH17 over Ukraine last year. According to the report, the aircraft was most likely struck by a Russian-made Buk missile fired from the contested portion of eastern Ukraine. The report certainly supports theories that the aircraft was shot down by Russian-supported separatists, without proving them inconclusively. Russia immediately disputed the report. The report also concludes that Ukrainian officials should have closed that region of airspace to civil aircraft.
Friday, October 9, 2015
Despite Russia's veto earlier this summer of a UN Security Council Resolution to establish a tribunal to investigate the downing of Malaysian Airline Flight MH17, the countries who lost nationals in the tragedy are determined to pursue some form of accountability for the attack. Australia, the Netherlands, Malaysia, Belgium and Ukraine are reportedly considering the formation of an independent tribunal that would not require UN approval, similar to the one adopted for the 1988 Lockerbie bombing. Expect to hear more about this idea in the wake of a fairly convincing account produced yesterday by a group of British investigative journalists detailing Russian responsibility for the incident, which will be followed by the next Tuesday's release of an official report by Dutch investigators.
Friday, October 2, 2015
Airlines had been hoping diplomatic talks in Havana earlier this week would clear the way for commercial operations between the countries later this year but according to reports, the FAA will need more time to ensure that Cuba's regulatory apparatus meets U.S. standards.
Thursday, October 1, 2015
According to a Wall Street Journal report, ICAO will acquiesce to the wishes of industry and various Member States that the deadline to comply with new flight tracking standards be pushed back from 2016 to 2018. Reportedly, a proposed requirement that aircraft be equipped with deployable flight recorders is proving particularly contentious as at least Japan, the EU, and the U.S. believe superior technological solutions are available.
Coincidentally, AirAsia today announced plans to install flight tracking systems on its aircraft. Interestingly, AirAsia will use different flight tracking technology then AirAsia India, which announced plans to fit its fleet with tracking systems last month. The AirAsia "franchise" model has at times raised questions about whether "effective control" of all AirAsia affiliates ultimately rests with the Malaysia-based parent. The fact that AirAsia and AirAsia India have chosen different flight tracking suppliers may offer one small data point in favor of affiliate independence.